Electoral College Reform Proposals

CRS Report for Congress

Whitaker, L. Paige and Thomas H. Neale

January 16, 2001

History

Since the adoption of the Constitution, the electoral college has been the subject of discussion and controversy. The 12th Amendment, (proposed by Congress on December 9, 1803 and ratified by three-fourths of the several states on July 27, 1804) which sets forth electoral voting procedures, has been the only major reform of the electoral college. Since then, in almost every session of Congress, resolutions have been introduced proposing electoral college reform. Indeed, more proposed constitutional amendments have been introduced in Congress regarding electoral college reform than on any other subject. Between 1889 and 2000, approximately 587 such amendments were proposed. (72) Generally, most of these bills had minimal legislative activity. However, for some of these proposals, hearings were held and some legislative activity occurred, but there was insufficient legislative support to obtain the two-thirds votes of both Houses of Congress necessary for approval of a constitutional amendment under Article V. (73)

The attempt in Congress that came closest to success occurred after the 1968 presidential election when American Independent party candidate George Wallace won 46 electoral votes, generating concern about the prospect of contingent election or the trading of electoral votes in return for policy concessions. In the 91st Congress (1969-70), H.J. Res. 681 (Celler), proposed to abolish the electoral college and provide for the direct popular election of the President and the Vice President, with a runoff requirement between the two presidential candidates with the highest votes when a 40% margin of the vote was not obtained. This resolution passed the House on September 18, 1969 by a vote of 338-70, but failed to pass the Senate in 1970 due to a filibuster. (74)

Likewise, congressional interest increased after the close presidential election in 1976, in which the Democratic candidate (Jimmy Carter) beat the Republican President (Gerald R. Ford) by a 50.1 percent popular vote margin and by an electoral vote of 297-240 (270 votes needed to win). (75) S.J. Res. 26 of the 96th Congress proposed direct popular election and was approved in the Senate by a margin of 51 to 48 in 1979. This margin was far short of the two-thirds required for a constitutional amendment. Given the results of the vote, the House leadership decided not to bring the proposal to the floor in the 96th Congress. To date, this 1979 Senate vote was the most recent floor action regarding presidential election reform.

Proposals to reform the electoral college in recent Congresses generally fall into two categories: those that would eliminate the electoral college system entirely, replacing it with direct popular election, and those that seek to repair perceived defects in the existing arrangement. These proposals are examined below.

The Direct Election Plan: Elimination of the Electoral College

In recent decades, the most popular proposal to reform the present method of electing the President and Vice President has been the direct election plan. Under this plan, the electoral college would be abolished and the President and Vice President would be elected directly by popular vote. Most direct election proposals would require that the winning candidates receive at least 40% of the votes cast, and provide for a runoff election between the two presidential and vice presidential tickets receiving the greatest number of popular votes if no candidate receives the requisite percentage.

Proponents of the direct election plan argue that their proposal is simple and democratic: the candidates winning the most popular votes would be elected. Direct election would thus eliminate the possibility of a "minority" President and Vice President because the candidate winning the most popular votes would always prevail. Further, it would eliminate an even greater potential for distortion of the public will by abolishing the contingent election process. In addition, proponents note that the direct election plan would provide every vote equal weight, regardless of the state in which it was cast. It is further noted that the direct election plan would reduce the complications that currently could arise, in the event of a presidential candidate's death, between Election Day and the date that the electoral college meets.

Opponents argue that the direct election plan would weaken the present two-party system and result in the growth of minor parties, third parties, and new parties. The parties are forced to conduct broad-based campaigns throughout the nation, in hopes of assembling the requisite majority of 270 votes, thus discouraging minor or splinter parties. Similarly, the need to forge national coalitions having a wide appeal has been a contributing factor to the relative moderation and governmental stability enjoyed by the nation under the two-party system. Moreover, it is argued, the growth of such parties could have a divisive effect on national politics and result in governance by less stable coalitions similar to those in some parliamentary democracies. Opponents further contend that a direct election plan would weaken the powers of the smallest and largest populated states under the present system since this new system would make each state's borders irrelevant in terms of voting because each vote would be counted equally under the one person, one vote principle, regardless of the population size of the state in which it was cast. (76) Finally, other critics of direct election contend that the allocation of electoral votes is a vital component of our federal system. The federal nature of the electoral college system is a positive good, according to its defenders. They assert that the founders of the Constitution intended the states to play an important role in the presidential elections and that the electoral college system provides for a federal election of the President that is no less legitimate than the system of allocating equal state representation in the Senate. Direct popular election, they claim, would be a serious blow to federalism in the United States.

Electoral College Reform

In contrast to direct popular election, the three proposals described in this section would retain the electoral college, but would repair perceived defects in the existing system. One characteristic shared by all three is the elimination of electors as individual actors in the process. Electoral votes would remain, but they would be awarded directly to candidates. The asserted advantage of this element in these reform plans is that it would eliminate the potential for faithless electors.

The District Plan.

The district plan preserves the electoral college method of electing the President and Vice President, with each state choosing a number of electors equal to the combined total of its Senate and House of Representatives delegations. It would, however, eliminate the present general ticket or winner-take-all procedure of allotting a state's entire electoral vote to the presidential candidates winning the statewide vote. Instead, one elector would be chosen by the voters for each congressional district, while an additional two, representing the two "senatorial" electors allocated to each state regardless of population, would be chosen by the voters at large. This plan, which could be adopted by any state, under their power to appoint electors in Article II, Section 1, Clause 2 of the Constitution, is currently used by Maine (77) and Nebraska. (78) Under the district plan, the presidential and vice presidential candidates winning a simple majority of the electoral votes would be elected.

Most district plan proposals provide that, in case of an electoral college tie, the candidates having the plurality of the district electoral votes - excluding the at-large electoral votes assigned to each state for Senators - would be declared the winners. If the electoral vote count still failed to produce a winner, most proposals advocating the district plan would require the Senate and House of Representatives to meet in joint session to elect the President and Vice President by majority vote, with each Member having one vote, from the three candidate tickets winning the most electoral votes.

An example of how the district system would operate in one state, as compared with the winner-take-all or general ticket system, follows. In 1996, President Bill Clinton received 5,119,815 popular votes in California to 3,882,368 for Republican nominee Bob Dole, and thus won all 54 of that state's electoral votes under the winner-take-all general ticket. (Independent candidate Ross Perot and assorted minor party nominees received an additional 1,070,398 votes). By contrast, under the district system, Clinton, who carried 37 congressional districts and the statewide vote, would have won 39 electoral votes (37 plus the additional two allocated to the statewide winner under the district system), while Dole would have won the 15 electoral votes representing the districts he carried.

On the national level, the district system would have produced somewhat different national electoral college results if it had been in effect in 1996. Totals for the general ticket and district methods are provided below:

Candidate
Clinton (D)
Dole (R)
Others
Total / General Ticket System
379
159
0
538 / District System
345
193
0
538

(Comparative electoral vote totals for the 1996 presidential elections: the general ticket and district systems compared.) (79)

Proponents of the district plan assert that it would more accurately reflect the popular vote results for presidential and vice presidential candidates than the present electoral college method. Moreover, proponents note, by preserving the electoral college, the district plan would not deprive small or sparsely populated states of certain advantages under the present system. That is, each state would still be allocated at least three electoral votes, correlating to its two Senators and its one Representative, regardless of the size of the state's population. In those states dominated by one political party, the district plan might also provide an incentive for greater voter participation and an invigoration of the two-party system in presidential elections because it might be possible for the less dominant political party's candidates to carry certain congressional districts. (80) Finally, proponents argue that the district plan reflects political diversity within different regions of states, while still providing a two-vote bonus for statewide vote winners.

On the other hand, opponents of the district plan contend that it does not go far enough in reforming the present electoral college method, because the weight of each vote in a small state would still be greater than the weight of a vote in a more populous state. In addition, they note, the district plan would continue to allow the possibility of electing "minority" candidates who win the electoral votes while losing the popular vote. Some opponents of the district plan further argue that by facilitating the garnering of electoral votes (since winning congressional districts is easier than winning statewide) implementation of the district plan would actually weaken the present two-party system and encourage the development of minor parties, new parties, and third parties.

The Proportional Plan.

The proportional plan retains the electoral college, but awards electoral votes in each state based on the percentage of votes received in each state (irrespective of the districts from which the voters come) by the competing candidates. In the interests of fairness and accuracy, and to avoid problems with rounding, most proportional plans divide whole electoral votes into thousandths of votes, that is, to the third decimal point. Under most proposals advocating the proportional plan, the presidential and vice presidential candidates receiving a simple majority of the vote, or a plurality of at least 40% of the electoral votes, would be elected. Should presidential and vice presidential candidates fail to receive the percentage, most proportional plan proposals provide that the Senate and the House of Representatives would meet and vote in joint session to choose the President and the Vice President from the candidates having the two highest numbers of electoral votes.

An example of how the proportional plan would have operated in one state in the 1996 presidential election, as compared with the winner-take-all or general ticket system, follows. President Bill Clinton, who as noted previously, captured all 54 California electoral votes under the general ticket system, would have won 28.725 votes, to 21.299 for Bob Dole, and 3.976 for Ross Perot and other candidates in 1996 under the proportional plan.

Nationwide electoral vote tallies for 1996 under the general ticket and proportional systems are provided below:

Candidate
Clinton(D)
Dole (R)
Others
Total / General Ticket System
379
159
0
538 / Proportional System
268.358
223.420
46.221
537.999

(Comparative electoral vote totals for the 1996 presidential elections: the general ticket and proportional systems compared.) (81)

Proponents of the proportional plan argue that this plan comes the closest of any of the other plans to electing the President and Vice President by popular vote while still preserving each state's electoral college strength. They also note that the proportional plan would make it more unlikely that "minority" presidents-those receiving more electoral votes than popular votes under the present system-would be elected. Proponents also argue that the proportional plan, by eliminating the present winner-take-all system, would give weight to the losing candidates by awarding them electoral votes in proportion to the number of votes they obtained. They also suggest that presidential campaigns would become more national in scope, with candidates gearing their efforts to nationwide popular and electoral vote totals, rather than concentrating on electoral vote-rich populous states.

Opponents of the proportional plan argue that it could undermine and eventually eliminate the present two-party system by making it easier for minor parties, new parties, and independent candidates to compete in the presidential elections by being able to win electoral votes without having to win statewide elections to do so. Further, opponents argue, the states would generally have less importance as units, since the winner-take-all aspect would be eliminated. (82) Finally, opponents question the 40% plurality threshold. If the point of the presidential election is to ascertain the people's choice, should not the winning candidate be required to gain at least a majority (50%) of electoral votes in order to avoid a runoff election or election in Congress?

The Automatic Plan.

The automatic plan would amend the present system by abolishing the office of presidential elector and by allocating a state's electoral votes on an automatic winner-take-all basis to the candidates receiving the highest number of popular votes in a state. Most versions of the automatic plan provide some form of contingent election in Congress in the event no candidate receives a majority of electoral votes. Of the three principal proposals to reform the electoral college, this proposal would result in the least change from the present system of electing the President and the Vice President.

Proponents of the automatic plan argue that it would maintain the present electoral college system's balance between national and state powers and between large and small states. Proponents note that the automatic plan would eliminate the possibility of the "faithless elector." Furthermore, the automatic plan would preserve the present two-major party system under a state-by-state, winner-take-all method of allotting electoral votes.

Under the present system, minor parties, new parties, and independent candidates have not fared very well in presidential elections, probably due to, inter alia, problems such as ballot access procedures, public financing in the general election, and the lack of name recognition and grass-roots organization in comparison to those of the established major parties. Opponents of the automatic plan argue that it perpetuates many of the perceived inequities inherent in the present electoral college system of electing the President and the Vice President. Opponents also note that under the automatic plan it would still be possible to elect a "minority" President and Vice President. (83) That is, it still presents the perceived problem that Congress and not the people could still decide the presidency and the vice presidency when a majority of the electoral votes is not obtained.

Conclusion

Despite various criticisms and controversies, the current form of the electoral college has delivered the presidency to the popular and electoral vote winners in 46 out of 50 elections since it became operational in 1804. (84) In the very closely contested 2000 election, for the first time in 112 years, the system resulted in a President and Vice President who received more electoral votes, but fewer popular votes, than the electoral vote runners-up. This event has stimulated renewed congressional and public interest in the question of presidential election reform, particularly electoral college reform.